Comfort v Lord Chancellor's Department

An employment tribunal must explain why a party has won or lost. It must identify and resolve the principal important evidential disputes bearing on the statutory issues. It need not address every issue; if a relevant issue has become otiose, it should explain why. A material dispute about what a senior manager told an employee at meetings could not be ignored where the employee relied on those statements in support of constructive dismissal and the employer’s notes were challenged. Failure to make findings on that dispute, or to explain leaving it out of account, was an error of law. The appeal was allowed and the constructive-dismissal and redundancy issues were remitted to a differently constituted tribunal.

Wendy Comfort, a Higher Executive Officer employed by the Lord Chancellor’s Department, challenged the consequences of a reorganisation merging the Cardiff and Swansea court groups. She sought a Court Manager post at Newport and alleged that discussions and proposed training arrangements amounted to disability discrimination, constructive dismissal, redundancy and breach of contract.

The Employment Tribunal found that she was disabled but had not been unlawfully discriminated against, constructively dismissed or made redundant under section 139(1) of the Employment Rights Act 1996. The Employment Appeal Tribunal dismissed her appeal on 2 July 2003. The central issue before the Court of Appeal was whether the Employment Tribunal could decide the constructive-dismissal and redundancy claims without resolving the dispute about what had been said at meetings with the respondent’s senior administrator.

Appeal allowed unanimously. Lord Justice Peter Gibson gave the leading judgment, with Lord Justice Tuckey and Sir Martin Nourse agreeing.

1. The court accepted that an employment tribunal has an irreducible duty to explain to the parties why they have won or lost. It must consider all relevant matters but need address only the principal important controversial points relating to the statutory issues. This principle was stated in High Table Ltd v Horst [1998] ICR 409 at page 420.
2. The tribunal of first instance must identify relevant evidential issues and pursue them to a reasoned conclusion. If an issue has become otiose, it must explain why. The court relied on Anya v University of Oxford [2001] ICR 847 at page 860, paragraph 25.
3. The dispute about the September and October meetings was a principal and important controversial issue. The appellant’s account, if accepted, was that she had been told that no job would be available after training and that the respondent’s senior administrator was unaware of a fourth Cardiff post. Those matters could materially affect whether the respondent had committed a breach entitling her to claim constructive dismissal. The authenticity and timing of the administrator’s notes also affected witness credibility.
4. The Employment Tribunal’s failure to make findings on that dispute, and its failure to explain why it left the issue out of account, constituted an error of law. The Court of Appeal therefore did not need to hear argument on the remaining grounds.
5. The order of the Employment Appeal Tribunal and the Employment Tribunal’s decision on constructive dismissal and redundancy were set aside. Those issues were remitted to a differently constituted Employment Tribunal for an expedited rehearing. The disability-discrimination decision was excluded from the remittal. The respondent was ordered to pay costs assessed at £523.83.

1. Court of Appeal (Civil Division) allowed the appeal, set aside the Employment Appeal Tribunal’s order and the Employment Tribunal’s decisions on constructive dismissal and redundancy, and remitted those issues to a differently constituted tribunal: [2004] EWCA Civ 349.
2. Employment Appeal Tribunal dismissed the appellant’s appeal against parts of the Employment Tribunal’s decision on 2 July 2003.
3. Employment Tribunal promulgated its decision on 21 May 2002. It rejected the claims of disability discrimination, constructive dismissal, redundancy and breach of contract.